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Steven S. v. Commissioner of Social Security Administration

United States District Court, D. Oregon, Portland Division

August 10, 2018

STEVEN S., [1]Plaintiff,




         Before the court is an unopposed Motion and Memorandum for Approval of Attorney Fees Pursuant to 42 U.S.C. § 406(b) (“§ 406(b)”) filed by plaintiff Steven S. (“Plaintiff”). Though Plaintiff is the claimant in this case, the real party in interest to this motion is his attorney, Sherwood J. Reese (“Reese”) of the law firm Drew L. Johnson, P.C. The Commissioner does not oppose the motion, but merely acts in a manner similar to “a trustee for the claimant[].” Gisbrecht v. Barnhart, 535 U.S. 789, 798 (2002). Having reviewed the proceedings below and the amount of the fees sought, the court concludes Reese is entitled to fees under § 406(b) in the amount of $20, 735.00.

         Procedural Background

         Plaintiff filed his application for disability insurance benefits on February 8, 2013, initially alleging an onset date of June 22, 2010, then amending that date to February 1, 2008. The Commissioner denied his application initially and on reconsideration. Following an administrative hearing, an Administrative Law Judge (“ALJ”) issued an opinion finding that Plaintiff was not disabled as of the amended onset date and, therefore, was not entitled to benefits. The ALJ found Plaintiff: (1) had not engaged in substantial gainful activity since the amended alleged disability onset date; (2) had severe impairments of bipolar disorder and persistent depressive disorder; (3) but did not have an impairment or combination of impairments that met or medically equaled a listed impairment; and (4) that with some non-exertional limitations, was able to perform a full range of work at all exertional levels, including his past relevant work as a construction worker. That decision became the final decision of the Commissioner on October 3, 2016, when the Appeals Council denied Plaintiff's appeal.

         Plaintiff sought review of the Commissioner's decision by filing a complaint in this court on November 15, 2016. Plaintiff alleged the ALJ erred by (1) disregarding a vocational expert's finding that Plaintiff was limited by his inability to work without distracting coworkers; (2) failing to incorporate all of Plaintiff's functional limitations into the residual functional capacity assessment; and (3) failing to provide clear and consistent reasons for rejecting Plaintiff's symptom testimony. He requested remand for an immediate award of benefits. The Commissioner filed a response brief, arguing that Plaintiff should not be awarded benefits outright, but conceding that the prior decision contained errors and, therefore, proposed a remand for further administrative proceedings. Plaintiff replied, maintaining that the only issue appropriate for remand was the question of benefit calculation because further proceedings were unnecessary given that the record was complete as to the dispositive issues in the case.

         This court agreed and, on January 9, 2018, entered an Opinion and Order reversing the decision below and, because further proceedings indeed would serve no useful purpose, remanding only for the immediate payment of benefits.

         Plaintiff filed a Stipulated Motion for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 (“EAJA”), in the amount of $8, 855.55, which the court granted on April 9, 2018.

         On April 30, 2018, the Commissioner awarded Plaintiff $82, 940.00 in back benefit awards. (Pl.'s Mot. for Attorney Fees, ECF No. 24 (“Motion”), at 2 n.1; Ex. B.) On June 26, 2018, Plaintiff timely filed the instant petition for attorney fees under 42 U.S.C. § 406(b) in the amount of $20, 735.00. The Commissioner does not oppose the motion.

         Legal Standard

         After entering a judgment in favor of a Social Security claimant represented by counsel, a court “may determine and allow as part of its judgment a reasonable fee for such representation, not in excess of 25 percent of the total of the past-due benefits to which the claimant is entitled by reason of such judgment.” 42 U.S.C. § 406(b)(1)(A) (2018). A “twenty-five percent contingent-fee award is not automatic or even presumed; ‘the statute does not create any presumption in favor of the agreed upon amount.'” Dunnigan v. Astrue, No. CV 07-1645-AC, 2009 WL 6067058, at *7 (D. Or. Dec. 23, 2009), adopted 2010 WL 1029809 (Mar. 17, 2010) (quoting Gisbrecht, 535 U.S. at 807 n.17). A § 406(b) fee award is paid from the claimant's retroactive benefits, and an attorney receiving such an award may not seek any other compensation from the claimant. Id. Accordingly, when a court approves both an EAJA fee and a § 406(b) fee payment, the claimant's attorney must refund to the claimant the amount of the smaller of the two payments. Gisbrecht, 535 U.S. at 796.


         The parties do not dispute that Plaintiff is the prevailing party in this matter. Additionally, the Commissioner does not challenge the amount Reese requests as attorney fees. Nevertheless, because the Commissioner does not have a direct stake in the allocation of Plaintiff's attorney fees, the court must ensure the calculation of fees is reasonable to prevent Drew L. Johnson, P.C. from receiving a potential windfall. See Gisbrecht, 535 U.S. at 798 n. 6 (“We also note that the Commissioner of Social Security . . . has no direct financial stake in the answer to the § 406(b) question.”).

         I.Fee ...

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